by Chuck Rice

In what we presume is an effort to accomodate employers and unions who would otherwise decide the issue by the now-uncertain card check procedure, on February 26, 2008, the National Labor Relations Board (NLRB) published a proposed rule that would create a new type of “consent” union certification election under the National Labor Relations Act (NLRA).  Under the proposed rule, an employer and a labor organization could consent to a certification election by jointly filing a petition with the NLRB containing the following information:

• the name of the employer, the address of the establishment involved, and the nature of the employer’s business;
• a general statement establishing that the employer is engaged in commerce within the meaning of the NLRA;
• the name, affiliation, and address of the labor organization;
• a description of the bargaining unit and the number of employees in the unit;
• the date agreed on by the parties for the election (which may not be more than twenty-eight days after the filing of the petition) and the location and hours for the election;
• the payroll period by which voter eligibility will be determined; and
• the full names and addresses of the employees eligible to vote in the election.

Under the NLRB’s current practice, a certification petition filed by a labor organization or a union generally must be supported by a “showing of interest” indicating that at least thirty percent of the employees in the proposed bargaining unit wish to be represented for collective bargaining purposes.  This showing of interest requirement is usually satisfied by the presentation of union authorization cards signed by employees.  Under the proposed rule, a certification petition filed jointly by the employer and the union would not have to be supported by any showing of interest.

Also, under the NLRB’s current practice, the filing of a certification petition by a labor organization or an employee generally triggers an NLRB investigation to determine whether a question regarding representation exists and whether the requested bargaining unit is appropriate.  Under the proposed rule, the NLRB would simply examine the certification petition jointly filed by an employer and a labor organization to determine whether it contains all of the required information and describes a bargaining unit that is appropriate on its face and not contrary to any of the NLRA’s statutory limitations on appropriate units.  If the petition satisfies these requirements, it would be docketed, and the NLRB’s Regional Director would notify the parties of his or her approval of the request for an election.  In the absence of “extraordinary circumstances,” the Regional Director would approve the requested date, place, and hours of the election.  Within three days of the docketing of the jointly filed petition, the Regional Director would send the employer the official NLRB notices concerning the election, which the employer would have to post in conspicuous places in the workplace.  As with traditional certification petitions, other labor organizations could intervene in the new type of proceedings, but the proposed rule would require that any motion to intervene be filed within fourteen days after the docketing of the jointly filed petition.

In a significant departure from current NLRB practice, the filing of unfair labor practice charges would not block an election held pursuant to a jointly filed petition and would not result in the impounding of the ballots cast in the election until the unfair labor practice charges are resolved.  Instead, the NLRB would handle any unfair labor practice charges in conjunction with any post-election proceedings.  All election and post-election disputes would be resolved with finality by the Regional Director.

If adopted, the proposed rule would add a fourth type of consent election to the three types that have long been recognized by the NLRB.  The agency has invited written comments on the proposed rule.  Comments must be received by the NLRB no later than March 27, 2008.  The full text of the proposed rule can be found at http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/E8-2767.htm.